Tag: lawyer

My attorney withdrew as my counsel in my divorce case. What do I do now?

I received a notice from opposing counsel that looks (or contains) something like this:

“You are hereby notified of your responsibility to appear personally or appoint counsel.”

What does this mean? What do I do now?

First, let’s explain to you and to other readers what a withdrawal of counsel is.

“Withdrawal of counsel” means that your attorney no longer represents you, that your attorney does not work for you anymore. Your attorney can “quit” in the middle of a case, and there two common scenarios when they do: 1) when the client cannot pay the attorney’s fees and/or 2) when the attorney and client don’t see eye to eye on how to proceed with the case. As long as no motion is pending or a hearing or trial has not been set, an attorney may withdraw by simply giving his/her client, the opposing attorney or party (if the party is not represented by an attorney), and the court a written “Notice of Withdrawal of Counsel” (a copy of which is filed with the court). If a motion is pending or a hearing or trial has been set, an attorney may not withdraw except upon motion and order of the court. See Utah Rules of Civil Procedure Rule 74.

Rule 74 further provides:

(c) Notice to Appear or Appoint Counsel. If an attorney withdraws other than under subdivision (b), dies, is suspended from the practice of law, is disbarred, or is removed from the case by the court, the opposing party shall serve a Notice to Appear or Appoint Counsel on the unrepresented party, informing the party of the responsibility to appear personally or appoint counsel. A copy of the Notice to Appear or Appoint Counsel must be filed with the court. No further proceedings shall be held in the case until 21 days after filing the Notice to Appear or Appoint Counsel unless the unrepresented party waives the time requirement or unless otherwise ordered by the court.

(d) Substitution of counsel. An attorney may replace the counsel of record by filing and serving a notice of substitution of counsel signed by former counsel, new counsel and the client. Court approval is not required if new counsel certifies in the notice of substitution that counsel will comply with the existing hearing schedule and deadlines.

If your attorney has withdrawn as your counsel and you either can’t find a new attorney or Licensed Paralegal Practitioner (LPP) to take his/her place, or if you choose to represent yourself (which is known as proceeding pro se) from that point, you are required to provide the opposing attorney or party (if the party is not represented by an attorney), and the court with a written “Notice of Personal Appearance OR Notice of Counsel’s or Licensed Paralegal Practitioner’s Appearance” (a copy of which is filed with the court). A form you can use for this purpose has been prepared by the Utah Courts and is available on their website here: Notice of Personal Appearance OR Notice of Counsel’s or Licensed Paralegal Practitioner’s Appearance (

This page on the Utah Courts website may also be helpful to you if you are proceeding pro se: Going to Court (

Utah Family Law, LC | | 801-466-9277

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How likely is a judge to give the non-custodial parent 50-50 parenting time after the primary custodial parent has been the primary parent for three years?

Before you read another word, know this: the answer in these situations is, “It depends on many and varying factors.” Nobody likes that kind of answer, but it’s the truth here.

Consult several attorneys in your jurisdiction about whether you may have a good case for a change of custody, if you believe you may. Many attorneys who consider themselves or bill themselves as “good and knowledgeable” attorneys on this subject don’t really know. Get second, third, and fourth opinions (but be warned: if an attorney tells you what sounds too good to be true, it likely is too good to be true and is being told to you to part you from your money).

Generally speaking, if no circumstances pertaining to the child custody award have changed substantially and materially during that three-year period, it is highly unlikely that the court would modify the child custody award and award the non-custodial parent custody of the children.

So, just what is a substantial and material change in circumstances pertaining to the child custody award? I cannot speak to how all jurisdictions define it, but in Utah (where I practice divorce and family law), the substantial and material change in circumstances that will lead to a change in the child custody award is overwhelmingly a change for the worse in the custodial parent’s circumstances. Even if the non-custodial parent could indisputably prove that he/she has significantly bettered himself/herself as a parent, if the custodial parent has become no worse than he/she was when the custody award was originally made, if his/her circumstances are substantially unchanged, then a modification custody will not likely be deemed appropriate or in the best interest of the child(ren).

But what if a court expressly stated that a parent was not awarded sole or joint custody due to suffering from some defect, that but for that defect he/she would have been awarded custody, and that the parent has since remedied the defect? In Utah, that could be a basis for modifying the child custody award. (See Hogge v. Hogge, 649 P.2d 51 (Supreme Court of Utah 1982)

If neither parent’s circumstances have substantially and materially changed, but the child’s circumstances have substantially and materially changed since the original custody award was made such that it would be in the child’s best interest for custody of the child to change, that could be a legitimate basis for seeking to modify the child custody award.

Utah Family Law, LC | | 801-466-9277

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Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

Utah Family Law, LC | | 801-466-9277

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Client Red Flags By Braxton Mounteer

In my time as a legal assistant in the family law profession, I have observed many different kinds of client behaviors, some better than others. Those behaviors that cause the warning sirens to go off in our office are not always apparent upon first meeting with a client. It can be two or three weeks of communication before a red flag behavior appears.

One of the worst red flags that I have seen is not telling the whole truth. Clients who spin a yarn that falsely paints them as victims who are down on their luck and being abused by their exes and the system. Usually, this kind of dishonest client is not only being dishonest, but gives as good has he or she got in a mutually dysfunctional relationship. There isn’t much of an argument to be had by accusing your spouse of being an abusive drunk, a pill-popper, a philanderer, etc. when you’re engaged in the same or similar bad behavior. Be honest with your lawyer. He can help you. He can’t magically make all problems disappear, but he can ensure you present the ugly truths about yourself in the most effective ways. Your lawyer can’t help you very much, if at all, however, if you’re not honest with your lawyer. Period.

Another behavior that sets off the warning bells are the clients who focus on how much money and/or assets that they can get out of their former spouse. You are entitled to an equitable distribution of the marital assets. A fair division. But when clients try to leverage the children for money lie about abuse and betrayal and debauchery, that’s not only disgusting but it can backfire.

Finally, the least damning of the red flags but the most common are the clients who ghost their lawyers. Why would you hire an attorney ostensibly to help you, then not cooperate with them? If your lawyer is calling, it is probably important. You need to take the call. You need to return the call. Read your lawyer’s emails. Respond to them. Timely. When you fall asleep at the wheel or just expect your lawyer to do everything, it isn’t your lawyer’s fault when things go awry.

Utah Family Law, LC | | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

Utah Family Law, LC | | 801-466-9277

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How Can You Tell if Your Lawyer Is Lying About Winning Cases if There Is No Evidence of It Online or in Paper Form?

Effectively, you can’t.

You might be able to verify whether your lawyer is telling the truth about his/her winning record if the lawyer is willing to give you the information about the case number, the parties, and the opposing lawyer, so that you could—with that information in hand—inquire with the opposing party and the opposing lawyer to see whether they can verify what your lawyer claims is true.

Utah Family Law, LC | | 801-466-9277

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Are some cases out there where the counsel has lied to his or her client?

Lawyers’ reputation for lying is, unfortunately, well-founded. There is a Bosnian proverb, “He who will lie for you will lie to you.” Lawyers who lie for their clients (and there are plenty of them) have surely lied to their clients too.

Utah Family Law, LC | | 801-466-9277

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Do family law divorce attorneys of the opposite side stalk and harass their client’s opposition if the client pays for it?

Some do (if you can imagine an attorney doing something like that, it’s probably already been done), but they’re outliers, and they are violating both the law and the rules governing fitness to practice law if and when they do so.

If an attorney is actually (actually) violating the law or violating the rules governing the practice of law, you are not obligated to suffer it. Notify your attorney and bring the misconduct to the attention of the court, the police, and the bar.

That stated, one cannot simply and subjectively brand an attorney of being a stalker or of engaging in harassing behavior and thus establish the attorney as a stalker or harasser. It’s common for sore losers to make false accusations of harassment against an opposing party and his/her attorney. Why? Because it’s a cheap, risk-free way to cast aspersions and demonize and neutralize (if the accusations stick to any degree) the opposing party and/or his/her attorney. Don’t be that guy/gal. If you think you may feel “stalked” and/or “harassed,” before your start accusing, be honest with yourself and ask whether you’re truly being stalked and harassed or just feeling defeated, hurt, angry, anxious, and afraid and wanting to lash out.

Utah Family Law, LC | | 801-466-9277

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 2:

If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.

Utah Family Law, LC | | 801-466-9277

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Why Your Lawyer Might Drop Your Case By Braxton Mounteer

So, you have gotten news that your attorney has quit. Your attorney wrote you an email informing you that he or she your counsel either will soon withdraw as your counsel or has filed and served a notice of withdrawal of counsel. What does this mean? How does this work?
Did you not pay your lawyer? Were you not cooperating with your lawyer? Were you disregarding your lawyer’s advice? Actively working against your lawyer? Sabotaging your own case?

Was the case just too much for your lawyer? Did your lawyer get sick or did an emergency arise that requires all of his/her attention? Could your lawyer sense that you were disappointed in your lawyer’s performance and didn’t want to stick around?

Regardless of what the reason was, you no longer have or will soon not have legal counsel. You will need to find another lawyer to represent you.

You may believe that you could do better than your legal counsel. You wouldn’t be the first to think that way. You are likely frightfully mistaken.  Unless you are a genius who can learn in weeks what it take others years to master, you will not get a good enough handle on the legal system in time. Even if you did master the law, that doesn’t mean you can succeed as well as a lawyer could.
The law on the books is not always the law handed down in court. Insiders have, and will always have, an advantage over those who aren’t legal professionals.
And the legal profession is not kind to those who “did not pay their dues” in law school and by taking the bar exam. Pro se litigants (i.e., people who represent themselves in court cases) who are the equals of lawyers in their writing and oral arguments make most lawyers feel inferior and threatened (and that includes the former lawyers who are now judges). When pro se litigants are so “presumptuous” as to think they will be taken as seriously as the lawyers, the system tends to discriminate against the pro se litigants. So even if your lawyer is nothing more than a useful prop, get one.
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What Made You Want to Become a Family Law Attorney?

Thank you for asking this question. It comes at a time when I’ve been thinking about this very subject.

I am the first lawyer in my family. I am also, at this point, the only lawyer in my family. I’ve been practicing law for 25 years, and while I did not exclusively practice family law at the beginning of my career, I practiced family law throughout my career, and focused purely on family law for the last 13 years. I chose to practice family law because I got tired of this scenario:

Potential client: Somebody did me wrong to the tune of $20,000, and I’d like to know how much it will cost for me to sue him to get a judgment against him for $20,000.

Me: It will cost you about $20,000 to sue him to get a judgment for $20,000.

Potential client: Hmmm, so I have to pay $20,000 to get $20,000? That still means I’m out $20,000.

Me: No, it’s worse than that. It will cost you $20,000 to sue him to get a judgment for $20,000, if you get a judgment for $20,000 against him, and even if you do get the judgment for $20,000 against him, that doesn’t mean you’re guaranteed to collect that $20,000 judgment. You will likely have to spend more time and effort after obtaining the judgment against him to collect the $20,000, and that’s if he actually has $20,000 that you can collect.

Potential client: Then it seems to me that it doesn’t take a genius to realize that odds are I’d be better off just cutting my losses and not suing.

Me: Agreed. Suing people to recover damages is, for most people, a losing proposition, in my experience.

It was good advice, but as you may have guessed, I didn’t make any money dispensing such advice.

Personal injury is too much of a money grab. Of course those who were wrongfully injured deserve compensation for their losses, but that has about as much to do with personal injury practice as that trip to Vegas has to do with being a necessary business expense.

I didn’t like criminal defense because I got tired of A) guilty people wanting my help to avoid accountability and B) dealing with those prosecutors and judges who at best don’t much value innocence and at worst fraudulently disregard it.

So what makes family law any different? While divorce and child custody disputes are also often matters of throwing good money after bad, you at least possess something you haven’t yet lost and that you may, if you can persuade the court that your just cause is just, still hold onto after all the litigation dust settles. Fighting for your children, your home, and your livelihood are some of the last things people should give up on. This is one of the reasons why I became a family lawyer. It’s a good fight.

What issues in divorce and family law that do not drown in a vast sea of lies are difficult–at times impossible–to detect in and among the fraudulent froth, which breeds cynicism and apathy in most judges. Knowing this, judges’ credulity fatigue leads to perfunctory, “I don’t need to hear any more” and “your guess is as good as mine” decisions. Knowing this, lawyers and litigants too often either deliberately take an ends justify the means approach or a “who knows what’ll work; let’s see what sticks to the wall” approach. Litigants abuse lawyers who abuse judges who abuse litigants in a vicious circle. Nothing destroys one’s faith in the legal system more or faster than experience with the legal system. The practice of family law is soul sucking. While our legal system is fairly well designed, it is, in general, poorly administered at every level from the judges on down to the lawyers and to the litigants. While there are some good people working within the system, there are not enough of them to make a meaningful difference in most cases, to say nothing of all cases. This is the other reason I practice family law; it’s the only practice niche where—because I know through hard-won experience where the quicksand, snakes, and tigers are, and how to avoid them, if not always defeat them—I can still do some good some of the time more often than in any other practice niche, and thus I can earn the money I charge for my services.


Utah Family Law, LC | | 801-466-9277

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What advice would you give to someone who has just started a divorce?

What advice would you give to someone who has just become one of the parties in a divorce proceeding?

#1. Know this: divorce law and the divorce process are almost surely not what you think they are. They are scarier, more complex, more confusing, more time-consuming, more expensive, more disappointing, and more discouraging than you can imagine. Ignore my words at your peril. 

#2. Don’t sign anything your spouse asks you to sign without reviewing it with a good divorce lawyer. Don’t let what your spouse tells you about “how it’s gonna be” upset or worry you. Don’t believe him/her when he/she says, “My lawyer says you must ______” or “I have the best lawyer in town.” Most of what your spouse tells you will be lies meant to intimidate, coerce, and dupe you. 

#3. Don’t take friends’ and family members’ advice as as substitute for the advice of a good attorney. Your friends and family members usually mean well, but have no idea what they’re talking about. 

#4. Keep an eye on your valuable things and information. They tend to disappear once a divorce is filed. Secure: 

  • your financial accounts against your spouse draining them; 
  • your important documents (this is not an exhaustive list): 
    • tax records 
    • loan/debt records, loan and credit applications 
    • appraisals/valuations 
    • bank/financial institution records 
    • insurance records 
    • birth certificates 
    • Social Security cards 
    • passports (for you and the kids) 
    • pay stubs 
    • account statements 
    • certificates of title 
    • estate planning records 
    • business records 
    • medical and health care records (for every member of the family) 
    • photographs 
    • your prenuptial or postnuptial agreement, if you have one 
    • etc. 

Inventory everything (take videos and photographs of it all) that you own (both jointly and separately); 

  • make sure your password-protected accounts (e-mail, cell phone, social media, credit cards, bank/financial institution accounts, bills to pay, financial accounts, credit cards, etc.) cannot be accessed by your spouse without your advance knowledge and consent; 
  • route your personal mail to a P.O. Box to which only you have access; 

#5. Don’t act out of fear or anger or revenge. If you do, you may do your case irreparable damage. Keep a cool head. Get a good divorce attorney’s advice. 

#6. Talk to a good divorce lawyer (not just any lawyer, not just any divorce lawyer, but a good divorce lawyer) now. Right now. Not next week. Now. Right now. Pick up the phone and make an appointment with a good divorce lawyer right now. Timing can and usually is crucial in divorce. 

  • The longer you put off speaking with a good divorce lawyer the more you lose (possibly forever) the benefits of knowing what you can and should be doing right now to protect and preserve your interests and those of your children (if you have minor children). 
  • Notice that I did not write “hire a good divorce lawyer right now.” If you can hire a good divorce lawyer right now, do it. The sooner you get competent legal representation the better. No exceptions. 
  • But if you do not have (or falsely believe you do not have) the money to afford a good divorce lawyer, scrape together enough money to meet and confer with a good divorce lawyer for an hour. It will be one of the best investments you ever make. 
    • A good divorce lawyer is not a bulldog. A good divorce lawyer is not a shark. a good divorce lawyer is not someone who is effective at cheating ( as the old Bosnian proverb goes, “He who will lie for you will lie to you.”) A good divorce lawyer is someone with experience, skill, and decency. These kinds of divorce lawyers exist, but are very hard to find. But they are worth finding. If you want your divorce to be less expensive, less time-consuming, and less miserable, find this kind of good divorce lawyer. 

#7. Unless you are young, penniless, childless, and convinced your spouse won’t or can’t hang you out to dry in divorce, don’t go the DIY route. Hire a good divorce lawyer, if at all possible. 

  • If you: 
    • earn money or receive money from other sources 
      • are self-employed 
    • own property of any kind 
    • have money in the bank, investment accounts, or tied up in a pension and/or retirement accounts 
    • have debts and obligations 
    • are financially dependent upon your spouse 
    • have a spouse who is financially dependent on you (in full or in part) 
    • have minor children 
    • are married to a malicious or crazy-malicious person 
      • have been accused of abusing your spouse or children, 

then odds are high that trying to divorce without a good lawyer’s representation throughout the divorce case is going to be absolutely miserable.  

 Utah Family Law, LC | | 801-466-9277   

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If you give a divorce lawyer a retainer on a divorce and then change your mind within a few days, are they obligated to return the retainer?

While I cannot speak for all jurisdictions and for all situations, generally an attorney to whom you have paid a retainer or advance deposit is obligated to return the unearned portion of that retainer/deposit if you terminate that attorney’s services, especially if you terminate the attorney’s services within days of retaining the attorney.

You will need to read your contract/representation agreement that you have with your attorney and gain an understanding of the ethical rules that govern attorney compensation in your jurisdiction to determine if there are exceptions to this general principle.

Utah Family Law, LC | | 801-466-9277

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Do attorneys ever have to represent relatives?

Do attorneys ever have to represent relatives or is that a conflict of interest?

I will give my personal opinion (as a lawyer, but not as a lawyer giving anyone any particular legal advice) as it applies in the jurisdiction where I practice divorce and family law (Utah).  

There is no inherent conflict of interest in an attorney representing a relative simply by virtue of the client being a relative. There is no inherent conflict of interest in an attorney representing a relative against another relative either simply by virtue of the client being a relative.  

If you learn that the opposing party’s attorney is a relative of that party, that is not a conflict of interest that would disqualify that attorney from representing that party.   

Utah Family Law, LC | | 801-466-9277  

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Many unhappy couples rush into divorce, but is it a wise course?

Clearly, acting in haste is risky behavior in any situation. Deciding to divorce is no exception. Rushing into divorce could result in an unnecessary divorce. Rushing into divorce could show your hand too early and result in losing on certain issues on which you might otherwise have won had you just been more careful and contemplative before you acted. 

Many people rush into divorce because they believe that it is better to act on the impulse rather than “chicken out”. There is, however, a clear difference between failing to act because of fear (that’s chickening out) and going off half-cocked. 

Procrastination often does hurt people who would have benefited from filing for divorce sooner than later. Many people who can and should divorce do not divorce by allowing fear and uncertainty cloud their judgment. While you shouldn’t put off until tomorrow what you can do today, few people benefit from filing for divorce the moment they have the idea. There are so many advantages to preparing in advance that are lost or just not possible if you rush into a divorce without knowing your objectives and having a plan* in place first. The point is to take action when action is warranted. You won’t know that without first taking sufficient time to take stock of your situation, consider your options, weigh the pros and cons, and then act. Divorce is rarely a decision to take lightly. 

One of the best ways to help you determine whether you should file for divorce, and whether you should file now or later, is to seek the opinions of professionals in the areas of family and law. Initial consultations with a good marriage and family therapist and a good divorce lawyer don’t cost a lot, and their value far outweighs the financial outlay. Find out if your marriage is salvageable and worth saving. Find out if the problem with your marriage and family is you. If you determine that divorce is what you need (as opposed to want) to do, talk to a good divorce lawyer about what you can expect to receive (and not receive) in a divorce, what the divorce laws are in your jurisdiction, and how the process works (they not what you think, I’ll guarantee you that). 

Whenever you can, you should make an informed decision. Deciding to divorce is no exception. 


* Bear in mind that while things rarely go according to plan, “In preparing for battle I have always found that plans are useless, but planning is indispensable.” – Dwight D. Eisenhower 

“No plan of operations can with any certainty reach beyond the first encounter with the enemy.” – Helmet Von Moltke 

Then why prepare plans when they rarely work out as imagined and hoped? Because planning still helps you, even when your plan is not a complete success or even when it is a total failure. Why? How? Planning and the resulting plans help you determine what matters to you most and what you are can do and are willing to do (or not do) to achieve those ends. Planning helps you think in both the short- and long-term about what choices you make and what their consequences could be to you. The more you know what really matters and what you really need and want, plans reflect that. So when circumstances change, your plans change not reactively but deliberately and correctly in the service of your goals. 

Utah Family Law, LC | | 801-466-9277  

(81) Eric Johnson’s answer to Many unhappy couples rush into divorce, but is it a wise course? – Quora 


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Do top lawyers advertise?

I have yet to see the best of the best lawyers advertise, and the most likely explanation is that they don’t advertise because they don’t need to advertise. 

But if you think this means any lawyer who doesn’t advertise “must be the best of the best,” you’d be wrong (that is, if I recall correctly, committing the fallacy of affirmative conclusion from a negative premise). While the best attorney’s do not advertise, that does not mean that any attorney who does not advertise is the best. Some lousy attorneys don’t advertise because they’re too poor or too lazy to advertise. Some excellent attorneys advertise (even though they might not need to do so). 

But there are the truly elite lawyers who are so good that they don’t need to advertise—those who need their particular kind of service know (or know people who know) who they are. 

Which brings up a good point: most advertising consists lies and deception. Anyone who buys any good or service based exclusively or even primarily upon the impression the advertising for that good or service made on the buyer is a fool. Advertising tries to find you. If you want quality, however, you must usually seek, define, and find it yourself. 

Utah Family Law, LC | | 801-466-9277 

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How much should you trust your lawyer? Part 2

This blog is in response to a comment made to a  video entitled How much should you trust your lawyer?

“The biggest problem I’ve encountered with attorneys isn’t legal competence but the “to a hammer, everything looks like a nail” problem. Emotions not motions is often the answer.”

I hear that frequently. And it is a good point, but 1) it means different things to different people and 2) it’s not as good a point an many people (particularly clients of lawyers) think.  

Yes, there are attorneys who stir up trouble and litigate either because they know no other way or because it’s lucrative for them. But there are also attorneys who aren’t afraid to get their hands dirty and do the necessary and difficult work of making the sausage once a dispute is submitted to the court’s for resolution. Many clients find they don’t have the stomach for seeing how the sausage is made. They come to realize they didn’t understand just how difficult, time-consuming, and costly litigation is. Rather than admit that they made a mistake, they will often claim that the lawyers and the legal system are the problem.* 

Many clients want to believe that “if we’d just talk it out, the opposing side and I could work it out.” This is true in some, but not all, cases. If “we can work it out between us ourselves, without involving attorneys and the courts” were true, most people who hire lawyers wouldn’t hire lawyers because they would have no reason and no need to hire lawyers.  

The fact is that many people can’t or won’t resolve their differences voluntarily between them. They take positions that they feel are irreconcilable, and when that happens, one or both of them resorts to litigation. 

Subsequently, the clients who hire lawyers get frustrated (and many times justifiably so) with how needlessly and/or inexplicably expensive, slow/inefficient, and nerve wracking the legal process is. That’s often when the parties on both sides of the dispute suddenly “see the light” and “wonder why” they are engaged in litigation when all they need to do is speak from the heart.  

Experiencing the miseries of litigation often motivates the parties to believe it’s better for them to settle out of court. Somehow they come to see that a dispute that the parties thought was irreconcilable becomes something they can and should quickly and simply compromise.  

*I personally believe that many court procedures and systems are either outright designed or at least administered in such a way as to make the process miserable, so that the parties will settle their case out of court (thus relieving the burden on the legal system). This is wrong, but that doesn’t mean it doesn’t happen.  

Utah Family Law, LC | | 801-466-9277  


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How much should you trust your lawyer?

The more power to be entrusted, the higher the stakes, the less I trust anyone under such conditions. 

Many of us find or will find ourselves in a situation where we must retain an attorney’s services. Essentially, it must be done, we have no real choice. Not retaining an attorney is worse than going it alone. 

Even then, hiring a lawyer does not relieve you of responsibility for your own case, of responsibility for protecting/advancing your interests. A good lawyer is a means of improving and augmenting your ability to do this, but only as long as you remain vigilant personally. If you don’t understand what your lawyer is doing or advising you to do, but “trust” that your lawyer is doing right by you, you’re just being lazy. If and when you fail to make informed decisions, you’re needlessly risking disappointment and failure, and that’s on you. You are responsible to find the best lawyer you can. I consider a good lawyer to be someone who is as honest and fair as he/she is skilled as a jurist and litigator. Don’t hire a mercenary, a shark. This calls to mind the proverb “He who will lie for you will lie to you.” 

Remember: a lawyer you can and should trust is not a lawyer who is infallible. Even the most trustworthy, skilled attorney cannot control the opposing parties, witnesses, law enforcement and court personnel, or the judge(s). Sometimes an attorney’s best advice fails. Any choice as to how to handle a legal matter is not without trade-offs and risks. That’s not a matter of how trustworthy your lawyer is. 

Utah Family Law, LC | | 801-466-9277

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Is it illegal for a lawyer to charge their ex client for a copy of their case file?

Is there anything illegal about a previous lawyer wanting to charge their ex client for a copy of their case file?

I can’t answer for all jurisdictions, but in Utah the answer is: 

  • If you were previously given your case file or previously given a copy of your file—and lost those—so now you want another copy of your file (and assuming your lawyer still has a copy of your file), then it’s fair for your former lawyer to charge you a reasonable fee for the cost of making you another copy of your file. You’re not entitled to a free copy or copies. 
  • If you were not previously given your case file or previously given a copy of your file, then Rule 1.16(d) of the Utah Supreme Court Rules of Professional Practice – Rules of Professional Conduct provides: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.” Thus, if you have not requested a copy of your file, you are entitled to your file (not a copy, the file itself). 
    • How long must your attorney keep your file after representation terminates? I’ve been told no less than three and no more than five years. Rule 1.15(a) provides, “[O]ther property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” So if representation terminated more than 5 years ago, your old lawyer is not required to keep your file any longer, and so if you want a copy of your file then, you are likely out of luck. 

Utah Family Law, LC | | 801-466-9277  

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Would the divorce rate drop if the parties had to see a psychologist first?

What do you think would be the rate of divorce in marriages if psychologists were to be consulted in court by couples before proceeding to see the lawyer for divorce?

Your intentions are good, your proposal won’t work. 

Short answer: forcing people to consult a psychologist as a prerequisite to obtaining a divorce would A) likely cause no appreciable reduction in the divorce rate and B) would surely not justify the costs associated with it. 

You appear to base your idea on several false assumptions: 

  • First, that professionals are infallible. They are not. That includes psychologists. Merely consulting a psychologist does not mean you will get competent care or advice from any and all psychologists. And the purpose of psychologists isn’t to talk people in or out of anything anyway, so forcing people to speak with a psychologist with the goal of reducing divorce likely would present some ethical conflicts that would cause many psychologists to balk. 
  • Second, that nary a professional (including psychologists) is motivated by self-interest. Plenty are. Some psychologists know that if they advocate for more psychologist involvement in the court systems, then that means more work for psychologists through the court systems. And so they do and say what they need to do and say to keep the work flowing, regardless of whether they feel that what they do and say is what is needed or warranted. 
  • Third, that most divorces are due to mental illness or other mental or emotional pathologies or disorders. While many divorces can be traced to mental and/or emotional problems in one or both spouses, not every divorce can be. Thus, requiring everyone who files for divorce to consult a psychologist would be a waste of time, money, and resources. 

Utah Family Law, LC | | 801-466-9277 

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